1. (who, after setting out the facts of the case, continued): There can be no doubt that, at first sight, Dindyal's case L.R., 4 I.A., 247; S.C., I.L.R., 3 Cal., 198 strictly applies. We have the rights and interests of some members of the family seized and sold in execution of a decree against them. The decree resulted from a mortgage of property not covered by the sale, and the sale would, under ordinary circumstances, on the principle of Dindyal's case L.R., 4 I.A., 247; S.C., I.L.R., 3 Cal., 198, pass no more than the rights of the debtors themselves. But we also have twenty-three years' undisturbed possession by the original purchaser and his assignee, the second purchaser, the defendant Laljee Sahye; and we shall, therefore, require to be satisfied in the strictest manner that the sale is one which can be invalidated after such a lapse of time. Owing to the continuing disability of the plaintiff there can be no question of limitation, but the circumstances of the conditional sale must be very closely looked into.
2. Turning to the deed of the 18th May 1846, we find that it was executed by all the members of Ram Sahye's family, who described him as insane. It described the property as belonging to the executants themselves, and in fact it was evidently executed under the impression that plaintiff Ram Sahye was civilly dead, or disqualified from owning the property. This position probably could not be maintained now, as it was subsequently decided in 1854 by the Sadr Dewany Adalut in the case of Balgobind v. Lal Bahadur S.D.A. 1854 p 244 that he was still the owner of his property, and as we find that he was not represented in the suit of 1851, we must, in strictness, hold that the sale in 1857 did not pass his interests.
3. The present suit is for possession of the entire two-annas share of Mouza Samrahi, which, in 1857, belonged to the plaintiff and his sons, excluding a similar share which belonged to the sons of his brother Sheo Sahye.
4. It has been contended that as one of the plaintiff's sons, Abhilak Bhagut, has not been made a party to the suit, it must fail for that defect. On the plaintiff's side it is urged that Abhilak has disappeared, but we attach no weight to this mere assertion. There is evidence that he took a part in the institution of the suit; but, under the circumstances, the objection is one to which we should not yield, for there is no question that Abhilak's interest in the property ceased in 1857.
5. The next point is, that the suit for the whole two-annas share will not lie. But Dindyal's case L.R., 4 I.A., 247; S.C., I.L.R., 3 Cal., 198 is clear authority for the proposition that the co-parcener can recover the whole property from an execution-purchaser, subject to the right of the latter to have the share and interest of the debtor ascertained by partition. Whether this case should be decided on the above principle depends upon the rules of Hindu law applicable to a co-sharer who lies under the disability of insanity.
6. The law is to be found in the Mitakshara, Part II, chap. ii, Section 10.
7. In verse 1, the author states, that 'an impotent person, an out-cast and his issue, one lame, a madman, an idiot, a blind man, and a person afflicted with an incurable disease, as well as others (similarly disqualified) must be maintained, excluding them, however, from participation.'
8. In verse 3, quoting from Menu, 'Impotent persons and out-casts are excluded from a share of the heritage: and so are persons born blind and deaf, as well as madmen, idiots, the dumb, and those who have lost a sense (or a limb).'
9. In verse 6, it is said,--'they are debarred of their shares, if their disqualification arose before the division of the property. But one, already separated from his co-heirs, is not deprived of his allotment.'1
10. A consideration of these texts and of other authorities quoted in Murarji Gokuldas v. Parvati Bai I.L.R. 1 Bom. 177 and of the decisions in this Court in Dwarkanath Bysak v. Mahandranath Bysak 9 B.L.R. 198 satisfies us, that it is not necessary that madness or insanity should be congenital to disqualify a person from inheritance. We have been unable to find any reported case in which a person who has become insane while in possession has lost his share on partition; but that he does lose his right to a share seems to us clear on the authority of the 6th verse quoted above. This seems to be Mr. Mayne's opinion: see's. 408, p. 423, 2nd edition of Mayne's Hindu Law.
11. On this view of the case it seems to us to follow that no decree could be passed in favour of the plaintiff which would contemplate a partition between himself and the purchasers of the interests of his co-parceners. Nor is it necessary to take into consideration the right of the plaintiff's sons or other heirs to be let in, for their interests have of course vested in their creditor now represented by the defendant Laljee Sahye.
12. The result therefore is, that the plaintiff's suit fails on every point, and we confess that it is a matter of very great satisfaction to us that we are not compelled to disturb a state of things which has lasted for about twenty-four years, and which, but for recent developments in the law as affecting creditors of a Mitakshara family, would never have been questioned.
13. We dismiss the appeal with costs.
1Note, that Sir W. Jones's translation is not quite the same as Colebrooke's. The former renders the text 'persons born blind or deaf, madmen, idiots.'The latter, 'impotent persons are excluded, and so are persons born blind, as well as madmen.'
Yajnavalkya--'a madman, an idiot, one born blind.'
Narada--'and one insane, blind or lame from his birth.'
West and Buhler do not associate 'born, or from his birth' with the preceding.
Strange says,--Jagannath makes an exception as to insanity being congenital, but does not approve.
Mayukha, chap. ix, Section 11.